As of today, it should be clear to everyone in this country, that our system for dealing with criminals (I won’t call it a “criminal justice” system since justice has so little to do with it), is utterly broken, beyond any conventional concept of repair.

At this point, again I say, it should be clear we can’t just “fix it”, we need to start over again, with a different concept.

I have a radical idea…. how about this time we start with an HONEST concept… because right now we are anything but honest about what the real function of the “criminal justice” system is; and that dishonesty is what has made all our efforts to date fail miserably.

Today, although we will never admit this to ourselves publicly, there are three things keeping the “Corrections” system going:

1. It’s a jobs program for law enforcement and “corrections” officers, and administrators

2. Non-offending people ARE actually safer when offenders are imprisoned (the problem is, what happens when they get out).

3. We like lots of cops (or at least the IDEA of lots of cops), we want to be “safe”, and we feel that people who do bad should be PUNISHED.

The reason “Sheriff Joe” “Americas Toughest Sherrif” is so popular (despite being the worst sort of self aggrandizing, corrupt, civil rights abusing scum) is because he reassures people that he is “punishing the bad guys”; and THAT is honestly what people want.

Eastern State Penitentiary, the first “modern” penitentiary style prison, was deliberately fashioned to resemble monks cells (which is where we got the name for inmate housing units), in the belief that isolation, contemplation, prayer, and penitence (thus the name), would reform criminals into decent men. It was held up as the new “humane” model. In reality it drove prisoners mad and they killed themselves, and each other, in droves.

So long as we refuse to acknowledge the true purpose behind “custodial sentencing” and pretend it has anything to do with the offender coming out better on the other side, we are stuck with what we’ve got (And rapidly getting worse).

We have to stop pretending that punishment does anything but feed our base emotions.

We have to stop pretending that the negative prospect of prison is sufficient to deter criminals from committing crimes. Most criminals by nature have a poor appreciation for consequences, poor impulse control, and an inability to make valid risk/reward calculations.

When you put a criminal away, all you are doing is warehousing him where he can’t commit that crime anymore. That does serve a valid purpose, but it costs a huge amount of money, and doesn’t fix the problem.

The so called “criminal justice” system can no longer serve as a jobs program for law enforcement, lawyers, administrators, and corrections personnel; nor can it simply be warehousing of offenders until we release them to commit their next offense.

So, here it is, really simple; my pie in the sky ideal for how to deal with crime and punishment.

This has to happen for ANYTHING to have any hope of working. That would eliminate something like 80% of the offenses in higher criminal courts, and drastically reduce prison populations (at least 40%, most likely something more like 80%).
Step 2: We must not only stop, but revert the proliferation of felonies

Right now, you can be convicted of a felony in some states, for as little as selling the wrong kind of fish at the wrong time. We have established a ridiculous number of offenses as “high crimes” (what felonies are intended to be); without any real justification or social purpose, except to inflate those whom the state can claim as convictions, claim higher punitive penalties from, or incarcerate for longer periods of time.

Accordingly, all crimes currently classified as felonies must be reclassified as misdemeanors unless they meet one or more of the following conditions:

We must eliminate custodial sentences for non-violent crimes, including felonies, unless those crimes involve:

1. Gross negligence or indifference leading to violent consequences or the loss of life (anything from drunk driving to greater liability issues)

2. Coercion, force or fraud causing damages in excess of five years of minimum wage (because this is effectively slavery for the victim)

3. Special circumstances which are considered “heinous” (more on that later).

We must restore the element of criminal intent into how crimes are charged and sentenced. If there is no intent, then there can be no intentional crime; only crimes of negligence or indifference, which are generally considered far less severe.

In this regard, any action taken while intoxicated or impaired should be considered qualifying, HOWEVER only if criminal damage or injury to others results.

I believe that people should be allowed to drink, swallow or smoke whatever they want, but if their choices cause impairment which then causes damage or injury to others, they should be punished SEVERELY; and crimes involving impairment should be considered intentional for purposes of determining severity.

Also for purposes of determining the severity of an offense, coercion or fraud shall be considered equivalent to force (force being defined as violence, or the threat of violence).

All other criminal offenses should be punished by restitution and compensatory and punitive damages to the victim, compensatory and punitive fines to the state, labor for public benefit, public humiliation, and two years of convict status (which can be reduced by order of a judge only after discharge of all obligations).

Further, on discharge of all other obligations, convicts shall be given a term, of “probation” equal to the length of their existing sentence.

The crimes, sentences, and photographs of all those convicted of criminal offenses should be published in all local newspapers, as well as on local and national web sites; and announced on local television.

All convicts should be required to wear a distinctive article (bracelet, necklace, ankle bracelet etc…) which lists their crime and sentence, and which cannot be covered up while in public.

Convicts must wear this article, until such time as their sentence and obligations have been discharged. At any time, the convict should be legally required to disclose their crime and sentence to anyone who asks; unless doing so would cause danger or disruption.

If a convict is able to earn more than a state mandated minimum wage in their private pursuits, they may continue performing them, and pay restitution and fines directly. If not, then they are directed to work for the state, at a competitive wage for such jobs as they perform, while meeting prevailing employment standards for such a position (i.e. if the only job they qualify for is ditch digger, it’s the only job they can get; and they still have to compete for it with non-convicts).

If the convict is unable to meet basic standards of work, or is unwilling to work, then they will be reduced to menial forced labor at minimum wage. If they refuse this, they will be incarcerated, as a regular inmate, for the term of their sentence.

Restitution, damages, and fines should of course be directly garnished from the convicts wages; but should be considered pre-tax income deductions for tax purposes.

All custodial sentences shall have terms of two, five, ten, twenty five years, or life (or death in states that allow it).

Different charged offenses can be combined consecutively to “stack” sentences; but only if those offenses make up separate criminal acts (if one crime involved 8 different chargeable elements with a 2 year sentence for each, then the convict would receive 8 two year sentences to run concurrently. If he committed the same crime on 8 different occasions, he could receive consecutive sentences, for a total of 16 years incarceration)

There is no parole, however sentences can be reduced (more on that later).

Forcible rape, aggravated sexual assault, sexual molestation, aggravated kidnapping, intentional premeditated or depraved homicide (what would be first degree murder in most jurisdictions), felony murder if the homicide is heinous by itself, any intentional negligent or depraved indifference crime resulting in mass death or mass grievous injury (mass being defined as multiple victims who were not individually targeted, or multiple victims who were unknown to the criminal and whom they had no individual an personal motive to harm), any crime involving tampering with a court or an election, any crime involving the intentional deprivation of an individuals basic human and civil rights (as enumerated in the declaration of independence, and the constitution), torture, espionage, treason; or any attempt to commit those crimes, or conspiracy to commit those crimes; shall all be considered “heinous crimes”.

Heinous crimes should all carry the maximum length of incarceration, and should be eligible for the death penalty in jurisdictions that allow it.

It is important however, that all state and federal laws about the definitions of these crimes must be clarified and harmonized to meet the highest standard of criminal act, and criminal intent (for example, a potentially but not explicitly sexual element to a simple assault – such as public nudity or forced nudity -, would not make it sexual assault. The intent and act must be sexual in nature, and involve sexual contact or acts, or attempted sexual contact or acts. Forcible rape must be limited to actual acts of physical violence, or coercion by threat of violence, resulting in a sexual act).

Oh and yes, I really do believe that voter fraud and election fraud should be punishable by life in prison. So should criminally preventing someone from voting who has the lawful franchise. Any criminal deprivation of rights should be considered as serious as rape or murder.

In addition to their custodial sentence, of course, all penalties that apply to non-custodial sentences would also apply. Restitution, damages, fines and fees, as well as all other conditions of convicts.

Sentences can be reduced, by a judge, on review of the case, and circumstances. A review will be automatically initiated at the time the convict discharges their restitution, damages, and fines, should they do so before the term of their incarceration is completed. Criminals convicted of heinous crimes however, would not be eligible for early release except for humanitarian reasons.

While serving a custodial sentence and incarcerated, unless disabled and unable to do so, the convict will be required to perform productive labor for at least 8 hours a day, five days a week; for which they will be paid at minimum, a base sum equal to the cost of their incarceration (for which they will be charged). They will also accumulate sick leave benefit, and paid vacation days, equivalent to a government employee of the same grade as whatever productive labor they perform.

If the convict is disabled and unable to perform any work, they will be given the same disability status as any disabled individual; and will receive the equivalent of all federal and state disability payments and benefits, to offset the cost of their incarceration.

The convict is to be given the opportunity to voluntarily learn useful job skills, and perform at a useful job at market rates, which can earn them money to pay their fines and restitution.

If the convict has useful skills which can be applied to work that can be performed within the terms of their incarceration without undue risk, this is to be allowed.

The convict is also to be offered the opportunity to work overtime, and earn more money; to be used to pay the cost of their incarceration, their fines and restitution; the balance of which should be the inmates to control as they see fit.

This should not imply the inmate has a right to any job other than basic labor paid at a rate sufficient to cover the cost of their incarceration. Only that the opportunity to seek and perform other employment must be allowed.

If a convict refuses to work, or does not meet minimum standards of work, they are to be restricted to solitary confinement without public exercise, visitation, or communication privileges (excepting legal and spiritual council), and reduced to subsistence ration. Additionally, any work day the convict refuses to work, the cost of their incarceration for that day will be added to their obligations.

Some of this may seem ridiculous (vacation days for convicts?) but it serves an important purpose. The convict should understand, they are performing a job, for pay. They benefit from their own labor, and they have to pay for their own upkeep. If they work harder or more or at a better job, they get ahead; just like everyone else.

This kind of normalization is really the only way to produce people who won’t reoffend when they get out. Get them useful job and life skills they can transfer to the outside world; and get them in the habit of meeting standards of behavior; you’ll see a huge difference.

Any convict caught committing any felony while incarcerated will be subject to immediate extension of their sentence to life in the case of non-violent felonies, or death in the case of violent felonies. Self defense (against ANY crime or attempted crime against them, not just murder) is considered a valid defense against such charges however.

On their release from custody, convicts will be liable to the same penalties and strictures as those who have received non-custodial sentences.

Any further felony committed by any felony convict, whether incarcerated or not, prior to the discharge of any and all obligations (fines, restitution, service or labor), or in the convicts “probation” period will result in an automatic custodial sentence of at least five years; even for offenses that would not normally carry a custodial penalty.

Any violent felony committed prior to the discharge of any and all obligations shall result in an automatic custodial sentence of life in prison, or death.

On the discharge of their fines and restitution, and completion of any service or labor requirements, and any probation period; all convicts shall have all their civil rights restored, including the right to vote, and the right to keep and bear arms.

Private employers may discriminate against convicts, even after their obligations have been discharged, should they choose to do so. The federal, state, and local governments however may NOT discriminate against convicts whose sentences have been discharged however, except for those convicted of Heinous crimes (who should, in general, not be released anyway) or in the case of employment in law enforcement, criminal justice, corrections, national security, or the military.

Any repeat offense of the same felony, or any violent felony by a convicted felon who has discharged their sentence, shall cause a convict to be considered an incorrigible offender, and subject to an automatic sentence of 25 years, life, or death at a judges discretion (25 years for any crime that would normally rate a sentence less than 25 years. Life for any crime that would normally rate 25 years. Death for any heinous crime, or crime that would normally rate life). As always, this is subject to review and reduction by a judge after the convict has discharged their obligations (excepting heinous crimes).

I call this the “one chance, don’t blow it” rule. I believe it is fully justified, because the nature and scope of felonies is being dramatically reduced; the standards for offense are much higher, and the ability of someone to reintegrate into society without re-offending should be much better under this regime.

That’s it. Not exactly simple, but a lot less complicated than our current system… and if anything can work, it ought to be this.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

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http://www.thelibertypapers.org/ Stephen Littau

Chris,

This is a very impressive post and I can see you have put a great deal of thought into the so-called corrections system, probably more than most policy makers (Sen. Webb ought to seek you out for advice on overhauling the prison system). You did a great job identifying the problems (and I agree with you 100% on your first step; attempts at reform would be futile without drug decriminalization or outright legalization) and I agree with most of your solutions (some I need to think about, a few others I disagree with).

I do have a couple of areas of disagreement though, namely “automatic” sentences (a.k.a. mandatory minimum sentences) and making more crimes eligible for the death penalty.

I don’t have much problem with setting guidelines for judges to consider (actually, that’s a very good idea so that punishments are more uniform) but I have a real problem with a one-size-fits-all approach.

As to the death penalty, if you have read anything I have written on the subject, it’s quite obvious that I’m opposed to it for a variety of reasons but mostly because I DON’T TRUST THE GOVERNMENT especially when it comes to this life and death issue. Cops lie, informants lie, witnesses lie, district attorneys/prosecutors lie; judges and juries sometimes engage in misconduct in both the guilt and penalty phases of trials. And if they do get caught? They attempt to cover it up (as Texas Gov. Rick Perry and his cohorts have done in the Cameron Todd Willingham case just to name one example).

I won’t get into the death penalty anymore here; maybe this is something we could debate in a point/counterpoint someday?

http://anarchangel.blogspot.com Chris

Stephen,

Neither do I, as I’ve written here before; but there are some cases where guilt is incontrovertible; also I presume that some states will want to keep it on the table, as well as the fedgov.

http://debbieandcarl.blogspot.com/ Debbie

Wow, you’ve really been thinking about this issue. Have you delved into the history of our prison system? I think it might assist you as you clarify your ideas further.

Carl Watner of The Voluntaryist has a great article about the history. I have a short entry about the article in the link provided below and it includes a link to Carl’s original article. Maybe you want to take a look: